Tag Archives: settlement

Third Circuit Asked to Rehear Concussion Settlement

(Editor’s note:Partner Joseph M. Hanna of Goldberg Segalla posted the following this morning on the firm’sblog – Sports and Entertainment Law Insider)

On Thursday, April 28, 2016, objectors to the approved $1 billion uncapped settlement agreement between the National Football League and a class of former players over concussion injuries sustained during their playing careers, filed a petition with the Third Circuit Court of Appeals, asking the court to rehear their appeal en banc. In a unanimous decision handed down earlier this month, the court, hearing the appeal with only three presiding justices, affirmed the district court’s decision approving the settlement, holding that the agreement was both reasonably under the circumstances and bargained for by both the League and the players.

The petition for a rehearing by the objecting members comes as no surprise; some objectors expressed their displeasure at the court’s decision almost immediately after the approval was affirmed. Continuing one thread of objection that was a focal point of the original appeal, the petitioners on Thursday cited to the fact that the current deal as agreed to – which demands the NFL only settle claims with former players who can prove they suffer from specific degenerative neurological diseases like Alzheimer’s and Parkinson’s as a result of their football days – fails to provide any remedial measures for players who suffer CTE. CTE, which stands for chronic traumatic encephalopathy and exhibits symptoms such as memory loss, mood swings, uncontrollable anger, and suicidal tendencies, has been the subject of intense media backlash throughout the last few years. Unfortunately, CTE can only currently be diagnosed posthumously – an area of contention the objectors continue to raise, arguing that the settlement cannot cover even the basic medical expenses of former players suffering from the disease.

Focusing on CTE harshly, the objectors rely on the fact that even the Third Circuit admitted the science on the subject was still in its infancy, arguing that until more is known about this specific brain disease and how to protect players from experiencing it, any settlement should be postponed or renegotiated to evolve with that science as it continues to develop.

If their petition shall fail, however, the objectors would only have the opportunity to appeal directly to the Supreme Court of the United States. And unfortunately for those members of the class already suffering, the longer this appeals process is dragged out, the longer it will be until settlement claims can actually be handed out to the former players.

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NCAA Concussion Class Action Granted Preliminary Approval, Maybe

By Paul D. Anderson of NFLconcussionlitigation.com

On January 26, 2016, Judge John Z. Lee granted preliminary approval to a proposed class action settlement that has been pending for nearly two years.

After initially rejecting the proposed settlement on December 17, 2014, Judge Lee ordered the parties to brief and attempt to re-work the settlement to remove some of the objectionable terms and to expand the class.paul

Most problematic, according to the objectors, was the fact that the proposed settlement forever barred any class member from pursuing personal injury claims against the NCAA on a class-wide basis. This, according to the objectors, is a valuable right that was released in exchange for essentially nothing.

The Court took note of this objection and, in its January 26 Order, this concern has been somewhat remedied.

Notably, however, the Preliminary Order is “subject to a number of modifications.” These modifications include the following:

  • The class-wide release is limited. A class member still waives its right to pursue a personal injury claim on a class-wide basis; however, it will carve out the right to purse a “narrowly limited” personal injury class action directly against a member school and/or the NCAA as it relates to a specific sport and during a specific time period.
  • The provision that essentially allowed the Medical Monitoring Program to seek a reimbursement from a class member’s private insurance is stricken. This is a substantial improvement.
  • A few additional provisions were modified, including the NCAA’s $5 million “contribution to concussion research….” The Court confirmed that, as it stands presently, this is an “illusory benefit” to the Class; thus, the Court ordered the NCAA to strike this provision such that the $5 million contribution “must constitute additional funding for research that otherwise would not have occurred absent this settlement.” In other words, the NCAA cannot credit its previous concussion research monetary contributions as satisfaction for the $5 million requirement; it must be a new allocation.

Since these modifications are “subject to” the settling parties’ acceptance, the NCAA could, in theory, reject the modifications and seek that the deal be re-worked again. The Court Ordered the parties to report on the status of these modifications at the next scheduled hearing on February 4, 2016. Assuming the modifications are adopted and the settlement is preliminarily approved as modified, the notice process will begin; i.e., all class members will be notified about the settlement and their rights.

The Benefits to the Class

The Class consists of “All persons who played an NCAA-sanctioned sport at an NCAA member institution on or prior to the Preliminary Approval Date.”

As you can see, this potential Class is massive—and it includes all sports, not just contact sports. It is estimated that the Class consists of “4.4 million athletes in forty-three different men’s and women’s sports.” The settlement provides that $70 million will be allocated to create a Medical Monitoring Program. The Medical Monitoring Program will last for a period of 50 years.

If the settlement receives final approval, class members will receive medical monitoring for neurodegenerative diseases. The Medical Monitoring Program consists of two phases. First, all class members will be eligible to complete a written questionnaire which seeks information about the class members cognitive, mood and behavioral state. It essentially seeks to determine whether the class member is symptomatic. Once the questionnaire is submitted, a group of experts will analyze whether the class member qualifies for the second phase.

The second phase will include a personal evaluation by a medical professional to determine whether a diagnosis can be made. This evaluation will include a “neurological examination, neuropsychological examination, mood and behavioral evaluation, and any necessary ancillary tests that comply with the then-current American Academy of Neurology clinical practice guidelines for the diagnosis and treatment of neurological disease.” Conversely, if the class member is deemed asymptomatic pursuant to the questionnaire, then (s)he will not be personally evaluated and thus will remain in the first phase. The asymptomatic individuals will be allowed to re-submit a questionnaire every “five years until age fifty and then not more than once every two years after the age of fifty.”

As a best-case (or rather, worst-case) example, a class member completes a questionnaire and discloses that he is having mood and behavioral issues, headaches, feelings of hopelessness, depression, explosivity and suicidal ideations. The individual would likely qualify for the second phase: medical evaluation. Let’s assume, for the sake of this hypothetical, that an in-vivo diagnosis of CTE can be made that complies with the ANA clinical practice guidelines. The individual is then tested for CTE. Consequently, the individual tests positive for CTE and is therefore provided with a diagnosis of CTE to a reasonable degree of medical certainty. So, what’s next?

Under the settlement, nothing. The individual receives a diagnosis under phase 2 and that is basically all he is entitled to—he may be provided with some direction on a “treatment plan” but the cost of any such plan would not be covered under the settlement. However, this leads to the next very important component of the settlement.

The settlement preserves an individual’s right to pursue a personal injury action against the NCAA and/or the college he attended. Thus, after receiving a diagnosis of CTE, the individual can pursue a personal-injury claim directly against the NCAA and a member institution. The potential personal-injury damages could amount to thousands or millions of dollars, or nothing. Future litigation will dictate this result.

Accordingly, far from “buying peace” this settlement appears to breed additional CTE litigation. This chapter has yet to be written, but it appears that CTE litigation against the NCAA and its member institutions is an emerging tidal wave that could have ripple effects for the next half century, or not.

Anderson is an attorney at The Klamann Law Firm in Kansas City.

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More ex-NFL Players Oppose the Concussion Settlement

By Joseph M. Hanna, of Goldberg Segalla

Ten former NFL players filed their brief opposing the NFL’s settlement plan that is now before the Third Circuit Court of Appeals for review, citing that the plan unfairly excluded players who have yet to be diagnosed with CTE, a degenerative brain condition.

The opposing players argue that the plan overlooks a potential 19,000 players who are likely to develop neurological diseases but have yet to be diagnosed with any. A lawyer for the players said, “It is the height of hypocrisy for the parties to defend a settlement that offers nothing for CTE to the vast majority of class members by arguing that those claims could not prevail at trial because the science is too new.”

The players named in the brief are Vincent Clark, Judson Flint, Robert Jackson, Ken Jones, Cleo Miller, Lou Piccone, Jim Rourke, Fred Smerlas, Elmer Underwood, and J. David Wilkins.

While the NFL and the settling former players must respond to the brief by September 15, there is no set schedule for the appeals court to hear the case.

Additionally, three more players, Jimmie H. Jones, Ricky Ray, and Jesse Solomon, are reported to have also filed a brief opposing the settlement plan because it only provides a remedy for players who are diagnosed with CTE as of the date the plan was finally approved by the district court but excludes those diagnosed with it after that date.

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